Making DIVORCE JUDGES ACCOUNTABLE - What Is A STATEMENT OF DECISION?

Posted on Mar 7, 2011 7:11am PST

What Are "Statements of Decision" in California Marital Dissolutions?

Given the 2011 changes to the California Family Code brought about by the
recommendations of the Elkins Task Force, you need to know about something
called a "statement of decision". This is because many family
law cases involving temporary or interim orders now require an evidentiary
hearing - or a trial or 'mini-trial' - on matters that used to
be decided as motions based only upon declarations and argument of the
parties or counsel.
California Code of Civil Procedure section 632 governs this device, and it is not available in straight law and motion
proceedings. It is available only on matters where there has been a trial
of factual issues.

Newly enacted Family Code section 217 directs family court judges and commissioners to hold hearings with live
testimony unless the parties stipulate otherwise, or unless the trial
court finds good cause to dispense with such hearings. I've written
about the Elkins changes extensively elsewhere on this Blog, so please
try the search engine at the top of each page for more information about them.

A statement of decision requires the family law trial court to state,
on the record, or in a subsequent written opinion, why it ruled the way
it did on any questioned fact. They often are integrated as part of the
court's "tentative ruling" and often the party or the attorney
for the party may be directed to prepare it for the Court, subject to
objections and argument from the other side. It is essentially the same
thing as a statement of the court's findings and its conclusions on
any controverted issue. Judge's don't necessarily appreciate such
requests, however, because they force the bench officer to expend additional
time to explain at least some of the aspects of their reasoning, and some
feel that it is provocative to ask them to explain their reasoning; the
conventional wisdom for lawyers therefore is "don't ask unless
you fear you are going to lose."

Statements of decision in family law cases, as with hearings on OSC requests
and certainly bifurcated or full on trials, are most important as a tool
for a potential appeal. Without them the record on appeal may be quite
unclear since the appellate court will have a difficult time determining
the fact basis for the trial court's reasoning. Effectively, absent
a SOD, this means that the appellate court will only reverse the trial
court ruling for errors at law - the reviewing court will presume that
the trial court made every factual finding necessary to support its decision.
This is one of the problems of asking for them - you are saying to the
judge "I think you may rule against me and so I am doing this to
protect the record on appeal."

There are important rules about when to request a statement of decision.
Where a trial is completed in one calendar day or less (or less than eight
total hours over several days), a request for a statement of decision
must be made
before
the court issues its ruling (i.e., before the matter is submitted for
decision). This means, before you hear the judge's ruling, not after!
There are technical rules about how to add up these hours. This will be
the typical family law OSC or Notice of Motion situation where testimony
may last from 30 minutes to several hours under FC section 217. Until
January 1, 2011, these situations typically included only domestic violence
hearings since evidentiary hearings were already required in those cases.

The procedures for statements of decision are to be contrasted with certain
statutory requirements that courts make and express their findings on
the record in certain statutorily enumerated situations, whether or not
these are specifically requested. I will identify those sections in the future.

Check back for further Blogs and pointers on these subjects. If you have
a contested hearing with testimony, and you get the sense the judge views
things differently then you do, ask for a statement of decision before
you hear the decision!

Comments

Sir, My question: Relative to the 'statment of decision', after testimony exchange, how much time can a judge take to listen to closing arguments and make/present a decision? Testimonies exchanged 70 days ago and there has been three (3) court date changes.

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